Under the old law, pre Care Act, carers were entitled under the legal framework to assessment under many different bits of legislation, and entitled to be told of their rights, under yet other bits.
But assessment was often a euphemism for a sympathetic chat and a lot of approval for being so willing and able to do such a good job. Not a gateway to services, or enforceable legal rights.
It was possible under the old law to be regarded as BEING carer, and being very much in need, but that state of affairs still did not trigger a legal right to a service or a budget than an individual could enforce by way of judicial review.
IF one was regarded as deserving, one might be offered, in the discretion of the council, and not pursuant to any duty, in the law, a range of types of support:
- A sitting service so that one could get out to the shops to get all the things the loved one being cared for, needed, and for running a household
- Respite – services or money that could be spent on backfilling time when the carer was not willing to be doing the care – these services were often capped to a particular amount of respite days or events or stays, per year. Some were in care homes, whilst some services would go into the person’s home in order to let the carer go away him or herself – that would be care at home.
- A carer’s ‘grant’ – a sum of money to spend as one wanted – usually a rounded arbitrary sum which everyone in that carer category, was given
- Something for You – ie a sum of money to spend on oneself, for a treat, that would compensate in some way for the exhaustion factor – a voucher to a spa, for instance – if that was what you’d really longed for and spoken up about.
- Hub-based services that were designed to support carers through introduction to networks, and advice and information – often accessed through the same voluntary organisation that had been contracted by the council, to do the carers’ assessments.
Once a council had decided to meet a carer’s needs, there was legislation in place for turning that money into a carer’s direct payment, under the old law, but that did not often happen, in practice. Carers were more often given the direct payment of their loved one to manage, and that is not at all the same thing, and is not even legal without decisions first being taken about capacity to request a DP, or without the carer being nominated by the holder of the DP to be their manager.
Although all these ways of relating to carers, under the old law, were based on a discretion, rather than a duty, and could therefore be withdrawn without any formal steps, the case law had moved on before the Care Act was finalised. Caselaw was suggesting by analogy in service users’ cases where discretionary services were withdrawn (and in closure situations too for preventive services) that withdrawal of even discretionary services, if they were important enough to the notion of the person’s place in society – withdrawals without notice or good reason – would impinge on a person’s human rights, and have to be conscientiously justified.
Even without Human Rights, it would always be possible for the courts to treat a service or an activity as such an important area of a person’s life, that common law principles of fairness would be said to have required notice and reasons in any event.
So when the Care Act was being drafted, it was no doubt considered to be time to put the rights of the carer on to a clearer basis.
Carers were given fresh Care Act rights to assessment for their support needs, rights to an eligibility decision about those needs, rights to a support plan under s25, and the implicit right to turn the budget into a carer’s direct payment.
Respite (replacement care) was also made, indubitably, from then on in, a service for the client, not the carer. So respite costs are not part of a carer’s care plan any longer (although a sitting service might be, because its purpose is to underpin other aspects of care being provided; the carer is not at leisure; they are still ‘on the case’, as it were…). There’s another myth busted about that, later on – Myth no. 10 if you’re interested in that one.
So, it’s been the law since the Gloucestershire case in 1997 that once a person is eligible, their budget must be appropriate and adequate enough to survive judicial review scrutiny (ie not be unlawful, irrational, unfair, etc).
That duty – regarding the size of the budget – is individually enforceable, because the duty is owed to each eligible service user. The Cambridgeshire case, many years later, reiterated that there has to be a rational nexus between the needs and ‘the points’ in a resource allocation system (ie how much care, and for how long, and how often?); also between the points and the pounds allocated (ie what type of input, if it all costs different amounts?), and finally as between the points x pounds figure, and the real cost of the required inputs, from the local or other relevant market. That’s what ‘rational’ means in public law.
So, although it’s taken a long time to get here, we are thinking that if that’s the law for service users, still, under the Care Act, (and it is) then it has to be the law for carers too.
Yet what is happening out there?
If a change in the law has trebled the number of people who count as carers, by removing the condition that regular and substantial care must be provided before one even counts at all, then clearly a council’s desperation to spend only the same amount of money as before, on that trebled group, now, is going to mean that either all carers get less or that the council has to give points to the input so as to reflect relativity between all of them. The points might be awarded, according to who does the most, or who suffers the most or who saves the council the most money because of the nature of what they do, regardless of the amount. The legality or rationality of this, in view of the purpose of meeting the carers’ NEEDS, as assessed, has not been litigated as yet, so it’s all up for grabs.
Various resource allocation schemes out there, attempt to do this in one way or another: some with banded rates; and some with impact scores. The fundamental problem we have with these is that neither sort of variation pays attention to the actual domains in which the carer has been assessed as unable to achieve.
One would not dream of doing a budget for an actual user of care services, without thinking to what end was the money to be directed, and that end MUST be the reducing of impact experienced from the person’s inability to achieve the eligibility domain tasks, down to something less than significant. Why woudn’t one aim to do the same with carers’ budgets, CASCAIDr would have to ask, rhetorically? So IMPACT score related sums of money for carers, are more likely to be legal than simple banding schemes dependent on AMOUNT of input, or money saved, but better still would be simple costing of what the carer, individually, actually needs to be able to cope in relation to specific domains. So, cleaning services for those struggling with maintenance of a habitable home environment, for instance. A sitting service and the cost of access to a gym for physical or mental wellbeing issues, perhaps. It’s all ‘facilities’, under s8.
Carers need to take note that they may need to do some thinking too, as to what WOULD actually meet their needs for support if they are going to carry on caring. It is ultimately a question of evidence as to costs: a cleaner, to compensate for the fact that one has done 3 nights of night time care, may cost £10 or £11 an hour in some parts of the country, and a lot less or a lot more, in others. You can’t make it up as you go along, and you can’t take judicial review proceedings against a council without a strong case that they’ve ignored credible evidence.
And more so than with a service user’s budget, what is done for a carer, is ultimately a negotiation too. What is it that would make you willing and able to go on a bit longer, or is it really time to stop?
We don’t want to finish this post without saying very loudly that a carer can’t JUST be offered a sum of money, on the footing that it’s a Grant, and something formal in the system. The only statutory function under the Care Act that enables the giving away of money is the direct payment function, and that turns on a REQUEST. That is, it is not the default route for a carer, unless they want the money, as opposed to a service. The default duty for any council is to provide carers’ with support services so as to meet their needs – they can’t just have the money foisted on them, unless they want to be supported via that route. So the far bigger myth out there is that MONEY is the only carer support that needs to be offered. Legal rubbish!! Even if it suits most carers, there will always be ones that it doesn’t suit, because of the difficulties that they are facing. Maybe that will be made clearer in the Green Paper next summer. Or even a chapter on carers might appear in the statutory Guidance…
We can’t absolutely say that set rates for carers being perfectly lawful, is a myth, as there’s no case on it yet. So we can’t bust it.
But we would venture to suggest that now we’ve set this stall out, as to why it might be, and now that carers and advocates will have been made more aware of the issue, council strategists having another think about it, in general and in specific individual cases, would not be a bad idea.
That would make a challenge much less likely.